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A day in the life…

By Peter H. GeraghtyDirector, ETHICSearch

You are a second-year associate in a firm that concentrates its practice in estate planning and probate matters. A senior partner comes into your office and tells you that he needs an answer to some ethics questions that have come up involving a longtime client of the firm.

It seems that the client, who owns a small business, has developed cash flow problems. The client has recently come to the firm with a new, complicated probate matter. The partner is concerned that should the firm agree to take this on, the client will not be able to keep current with the monthly statements generated by the firm during the course of the representation. He asks you whether it would be ethical to include a provision in the retainer agreement that would authorize the firm to withdraw from the representation in the event that the client failed to pay his legal fees in a timely manner.

In a different matter involving the same client, one of the client’s customers, who has had a long-standing dispute with the client over monies owed for services rendered, has written a check to the client that has been returned with the stamp, “Account Closed.” This may constitute a crime in your state. The partner would like to send the customer a letter threatening to report the client to law enforcement authorities if he does not make good on the check, but seems to recall a provision in the ethics rules that prohibits making threats of criminal action to gain an advantage in a civil matter. Can he send such a letter?

As the senior partner leaves your office, he pauses as if struck by some sudden inspiration, turns around, and says “by the way, I’m meeting with the client tomorrow afternoon, and I will need answers to these questions by tomorrow morning.”

Even though you had an ethics course in law school a few years ago, ethics questions don’t come up that often at the firm and you’re a bit fuzzy (not to mention desperate) about where to begin your research.

What resources are available to you to help you find the answers to these questions?

One of the best places to start researching questions of this sort is the ABA/BNA Lawyers’ Manual on Professional Conduct. Jointly published by the ABA and the Bureau of National Affairs, the Manual is very widely available in law libraries, and consists of three parts: a treatise on the law of professional responsibility; Current Reports that are issued bi-monthly and consist of articles on current developments in the area; and digests of thousands of state and local bar association ethics opinions. The Lawyers’ Manual is also available on Westlaw in the ABA-BNA database, and on Lexis using the BNA;MPC database. It is also available on the BNA website, where you can register for a 30-day free trial.

If you were to do the search in an electronic database, it is, of course, necessary to be familiar with the language and the specific rules of professional conduct that are likely to appear in a discussion in a relevant ethics opinion, case law or law review article. With regard to the first question, the Model Rules implicated would include Rules 1.2Scope Of Representation And Allocation Of Authority Between Client And Lawyer, 1.5Fees and 1.16Declining or Terminating Representation. In many instances, it might also be prudent to include the Model Code of Professional Responsibility (Model Code) corollary to the specific Model Rule. To date, nearly every state has adopted a version of the Model Rules, but before they did so, most followed a version of the Model Code. Consequently, in most states there is a significant body of ethics opinions and case law that base their analysis on their versions of the Model Code in the era before the adoption of the Rules. Using the Model Code provisions would be particularly important in states such as New York and Ohio, where their versions of the Model Rules were adopted relatively recently (April of 2009 and February of 2007, respectively). The same would also be true of ABA ethics opinions issued before 1983 when the ABA withdrew the Model Code and replaced it with the Model Rules. In this instance, the relevant Code provisions would include DR 2-106 Fees for Legal Services, DR 2-110 Withdrawal from Employment, DR 7-101 Representing a Client Zealously and DR 7-102(A) 6, 7 & 8 Representing a Client Within the Bounds of the Law. One further note—if your research focuses on a particular state, it is always the better practice to check that state’s rules before formulating a search. In addition to substantive variations that can occur state by state, in some instances numbering can also vary.

Back to our associate in the hypothetical who is no doubt frantically looking through his old legal ethics textbooks from law school, a search that he might attempt in the Lawyers’ Manual database. With regard to the first question, the search term might look something like this: “RETAINER /P WITHDRAW! /P FEE.” This search returned 93 documents, which included the following digests of state bar ethics opinions and an excerpt from the treatise section of the Manual.

New York State Bar Opinion 719 (Improper for lawyer to utilize retainer agreement in domestic relations matter which misleads client regarding circumstances under which lawyer may withdraw for nonpayment or other reasons.) (1999), Connecticut Opinion 95-23 (1995) (Lawyer can’t include provision that he will withdraw if client files for bankruptcy), Arizona Bar Opinion 94-02 (1994) and Missouri Informal Opinion 20000172 (lawyer may not insert provision in retainer that authorizes him to withdraw if client does not pay lawyer’s bill) (undated).

The search also turned up a reference in the Lawyers’ Manual treatise section from the chapter entitled, “Permissive Withdrawal/Representation,”(last updated in 2006) that appears at page 31:1101 and that states as follows:

Note, however, that ethics committees have been reluctant to give their stamp of approval to retainer agreements that give lawyers an “automatic” right to withdraw if the client experiences financial difficulties. See Arizona Ethics Op. 94-02 (lawyer may not include right in retainer agreement to, among other things, “abandon” case should it become financially burdensome); Connecticut Informal Ethics Op. 95-24 (1995) (retainer agreement may not include provision allowing immediate withdrawal if client files for bankruptcy); Missouri Informal Ethics Op. 20000172 (2000) (retainer agreement provision cannot provide that lawyer will automatically cease work on client's case if client does not make payment). (emphasis added).

Another useful research tip is to search through the ABA ethics opinions to see if the ABA Standing Committee on Ethics and Professional Responsibility has ever issued an ethics opinion on the issue in question. Databases for the ABA ethics opinions are available on Westlaw and Lexis; an index for ABA Formal Opinions that date after 1983 is also available on the ABA Center for Professional Responsibility’s website. If there is a relevant opinion, try using the opinion number (particularly those opinions that date after 1983 that are numbered in hyphenated form) as a search term in the Lawyers’ Manual or in any other ethics related database. In the world of ethics opinions, ABA opinions are very widely cited so that a search using an ABA opinion number will tend to pull up any relevant state or local bar ethics opinions that post date the ABA opinion.

If you were to find a relevant ABA opinion, you could also shepardize it using Shepard’s Professional and Judicial Conduct Citations(issued quarterly). This citator shepardizes the ABA Model Rules of Professional Conduct, the Model Code of Professional Responsibility, and state versions of both the Rules and the Code. It also shepardizes ABA formal and informal ethics opinions.

Back again to our desperate associate: With regard to the second question, if he were to run a search in the ABA ethics opinion database such as “Threat! /p criminal /p prosecution,” he would find ABA Formal Opinion 92-363Use Of Threats Of Prosecution In Connection With A Civil Matter (1992). If he were to use the opinion number as a search term in the Lawyers’ Manual database, he would find several digests of state bar ethics opinion that had addressed the issue—perhaps even one from his own jurisdiction! In addition to the state bar opinions, the search would pull up a reference to a separate chapter in the Manual treatise section entitled, “Threatening Prosecution.”

For further information on this topic, See the Oct. 2008 Eye on Ethics column entitled, “Making Threats.” This particular issue is a good one to illustrate the importance of being familiar with the applicable state rules of professional conduct when conducting research on legal ethics matters. As the “Making Threats” article points out, while the Model Rules did not carry forward the old prohibition against making such threats that was in DR 7-105 of the Model Code, some states did retain it and have incorporated it into their version of the Rules.

Of course, the Lawyers’ Manual is not the only source for research in legal ethics. Other excellent resources to consult for these types of questions include Rotunda and Dzienkowski’s Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility (2010-2011); Hazard and Hodes’ The Law of Lawyering, Third Edition, Aspen Law & Business (2011); Wolfram, Modern legal ethics (West Pub Co. 1986); and the new 2011 edition of the ABA Annotated Model Rules of Professional Conduct. For further resources, see the bibliography of ethics research materials that is available on the ABA Center for Professional Responsibility’s website here.

One final note, you should never feel that you are alone when faced with an ethics question. Many state and local bar associations offer ethics research or hotline services. A list of state resources that includes references to state bar ethics hotlines is available on the ABA Center for Professional Responsibility’s website here. And, of course, the ABA has its own service, ETHICSearch, whose lawyers are ready to assist with any ethics research assistance you may need.